Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 14th September 2006.
Before :
Stephen Wildblood QC
Between:
In the matter of D v B and others (flawed sexual abuse enquiry)
Judgement
Stephen Wildblood QC
This judgment consists of 43 paragraphs and has been signed and dated by the judge. Insofar as may be necessary, the judge hereby gives leave for it to be reported.
Judgment
After some hesitation and guidance, I have decided that a shortened version of the judgment in this case should be released for publication. It is an example of a flawed enquiry into false allegations of sexual abuse. It also surveys the evidence of a 'veracity expert' who contended, wrongly, that the allegations should be believed.
This is a case which concerns the future welfare of a boy, TD, who was born on 8th February 2003. He is therefore three years old. TD's father ('the father', who lives in Somerset) and TD's mother ('the mother', who lives in X) were not married. The mother has a daughter called EB, who is aged 5 having been born on 4th December 2000. EB has a different father to TD. At all material times TD and EB have lived with the mother.
This is a fact finding hearing in greatly delayed proceedings. The substantive applications before the court are made by both parties under section 8 of The Children Act 1989 and relate to TD only. The dominant application is by the father for contact; it was made on 23rd September 2003. The father has not sought orders in relation to EB. TD has been joined to the proceedings and appears by his Guardian ad litem. The father now has parental responsibility pursuant to an order of 16th August 2005.
On 11th August 2006 (i.e. on the eighth day of this hearing) the Surrey County Council made a long overdue application under section 31 of The Children Act 1989 for supervision orders in relation to both children.
On 6th March 2006, I ordered that the mother should state in a written document the findings that she sought. The allegations recorded in the resultant document can be summarised in two sentences:
Both EB and TD have been sexually abused by the father;
The mother's belief that the children have been sexually abused is genuine.
It is accepted that, in relation to EB, any abuse of her by the father must have occurred prior to 7th April 2003 (when the mother and father finally separated). The allegations of the abuse of TD arose first in August 2005 after the first unsupervised contact visit on 18th August 2005 but then became more specific in November 2005 after the first staying contact that then took place.
The specific detail of the allegations of sexual abuse are stated in a document as follows:
In relation to EB:
The father has hurt her bottom;
The father put his fingers and a knife in her bottom;
The father put his penis in her bottom
In relation to TD:
The father put his penis in TD's mouth;
The father put a knife on his penis;
The father put his fingers in his bottom.
That document states expressly that there are other allegations of abuse that are associated with those primary allegations ('EB has made various statements which are suggestive of abuse…which the court will be invited to consider as part of the context and background to the making of the specific allegations set out'). It makes no mention of 'the paternal grandmother' (as I will call her).
Having read the documents in the case it seemed to me to be obvious that the mother also made allegations against the paternal grandmother. The documentary evidence that had been filed by then made it plain that the mother was contending that the paternal grandmother:
Witnessed acts by the father that she knew or ought to have known amounted to sexual abuse by the father of both EB and TD;
Applied cream to EB in an attempt to conceal the physical harm that had been occasioned to her by the father in an act (or acts) that she knew or ought to have known to have been sexually abusive;
Failed to protect either child from sexual abuse by the father;
Lied to the court in oral and documentary evidence about her knowledge of and involvement in the sexual abuse of both children.
During a directions hearing on 7th April 2006 I raised whether findings were being sought against the paternal grandmother. Counsel then instructed for the mother argued strenuously that no findings were sought against her and that it would be wrong to join her to the proceedings. I referred to Re S (child case: intervener), Re [1997] 2 FCR 272; sub nom Re S (care: residence: intervener) [1997] 1 FLR 497, CA and Re H (care proceedings: intervener) [2000] 2 FCR 53 CA. I also considered The Secretary of State for Trade and Industry v Bairstow [2003] EWCA Civ 321 at paragraph 38 (if, sub silentio, findings were being sought against the paternal grandmother, a woman who has regular contact with her 11 other grandchildren, any findings may not bind her in any subsequent proceedings without proper involvement in these proceedings).
On the paternal grandmother's application, I joined her as Third Respondent (although she has been referred to as an intervener) and she has been represented throughout these proceedings. Ms Gargan, the third counsel who appeared for the mother during these proceedings (and who skilfully took up the responsibility of the mother's case on the second day of the hearing), acknowledged that she did seek findings against the paternal grandmother to the effect set out above, contrary to the strenuous arguments of the mother's first counsel.
During the currency of this hearing it was necessary for me to formulate the terminology that reflected the allegations that were being suggested against the paternal grandmother; I then invited submissions from the legal representatives upon that formulation. I adapted my original formulation following submissions from Ms Gargan about the case that she wished to present on behalf of the mother. Although there is no suggestion that the paternal grandmother experienced any surprise or injustice about the delayed formulation of the allegations that she faced, I do not consider that this task should have been left to me; it is not part of the Judge's role to formulate a party's allegations. It should have been done by those then acting for the mother at least 12 months ago – see the order dated 1st June 2005. If it was not done then it should have been done immediately after paragraph 6 of my order of 7th April 2006. Ms Gargan (who represented the mother with outstanding skill) does not bear the blame for the delay.
The factual basis of the allegation against the paternal grandmother, is that she came across the father in the act of abusing EB and was unable to pull him off. Seeing that EB was bleeding as a result of the abuse, she later applied cream to EB and then concealed the abuse, giving perjured evidence on the issue. It is suggested that there is evidence that the paternal grandmother witnessed or ought to have known that the father was abusing TD.
I consider that the use of the phrase 'ought to have known' in the formulation of those allegations to be inapposite. If, as is alleged, the grandmother saw the father on top of the child and saw bleeding caused by that act to the child's genital area, it seems obvious that the grandmother would have known that the child had been abused (particularly since it also alleged that the child told the grandmother what had occurred).
This case has been acquainted with a large number of difficulties. I give more details of them later in this judgment. However, the most clamant are these:
These proceedings have been grossly delayed. There has been a succession of orders since September 2003 (enclosure A lists twenty seven orders but that list is by no means complete);
The time estimate was hopelessly inadequate. If I had known that the case would turn into one of this duration with this breadth of enquiry I would not have accepted the invitation that I should take it as a deputy, without discussing the case with the Family Division liaison Judge. The expense of these proceedings has been phenomenal.
The documentation expanded considerably in the weeks leading up to the hearing. The original two bundles of documentation became twelve files of papers, some with over 500 pages in them;
Judicial continuity was lost when His Honour Judge Cotterill retired at the end of 2005. He had the conduct of this case until then. He had taken a firm line against this mother;
On 2nd September 2004, a fact finding hearing was listed before His Honour Judge Cotterill when he was due to determine the truth of the allegations that the father had sexually abused EB. That hearing did not proceed. The order that was made on that day simply records 'Upon the mother not proceeding with her allegation of abuse' and then gives directions in the contact application. No evidence was heard and there was no judicial determination of the allegations. On 1st April 2005 an order was made that the 'matter be further listed for a fact finding hearing on the first available date after 16th May 2005 with a time estimate of two days before His Honour Judge Cotterill if possible' – that hearing did not proceed. There was a brief hearing on evidence on 3rd May 2005 when Judge Cotterill concluded that the paternal grandmother was a 'suitable and appropriate person to supervise contact'; the allegations of involvement in sexual abuse were not put to the paternal grandmother at that hearing and the mother's statement on the issue of the suitability of the paternal grandmother as a supervisor made no mention of any such allegations. A further order for contact was made on 1st June 2005 without evidence being heard, backed with a penal notice. An order was made on 16th August 2005 for unsupervised contact progressing to defined staying contact.
Within less than a fortnight of the order of the 2nd September 2004 (in which it is recorded that the mother did not pursue the allegations against the father), the mother had enrolled herself onto a course of counselling with the NSPCC in Surrey for parents of sexually abused children. There she presented herself as a parent of a child (EB) who had been sexually abused by the father. The mother received counselling and support upon that basis from friends and the NSPCC;
Within four months of the hearing on 2nd September 2004, the mother had also enrolled EB onto a course of therapy with the NSPCC as a child who had been sexually abused by the father. The trainee play-therapist who had participated in the counselling sessions of the mother carried out the therapy sessions with EB. The child was told prior to the therapy that the purpose of the therapy was to tell the therapist how the father had hurt her;
Thereafter, the therapist formed the view that the allegations that the father had abused EB were true and fed that belief into the social care system in Surrey. A social worker in Surrey was influenced by the therapist and accepted her view. Groups of professionals met in Surrey and debated wide issues about their beliefs about the allegations, some believing them, some not. There was discussion about a number of issues, which were simply floated without resolution (e.g. whether the mother suffered from "Munchhausen's syndrome by proxy", a label that has in any event been commented upon by Ryder J in paragraphs 175-177 of his judgment in A County Council v A Mother and A Father and X, Y and Z [2005] EWHC 31 (Fam) and whether she was "transposing her own experiences of childhood abuse upon the children"). Information was kept from the father lest it should interfere with EB's therapy - see an order made in August 2005 made without notice to the parties on the application of the Local Authority (who were not parties) seeking exemption from disclosure of the minutes of the 'professionals network meeting' that was held on 24th May 2005. That meeting, which I was told in evidence was 'swayed' by EB's therapist to support the suggestion that EB had been abused by the father, was held in Surrey. The extent of this difficulty can be seen in a document which was written by a very experienced social worker: 'The County court judge dealing with the matter in the beginning (who has since, incidentally retired,) however found 'mother's account of events truly extraordinary, well exceeding his comprehensive fifteen years experience'. The Judge hence directed further investigations and advises the father to upgrade his contact application to a fully-fledged residence application. It is also of some relevance that similar concerns have also been voiced by different professionals, although much of such controversial material never reached Court. The former social worker applied censorship and imposed non-disclosure of minutes of some professionals meeting by means of solicitor instructions. The reasoning given was that it 'could compromise working relationship with mother'.
There then developed two systems running in opposition. The court in Taunton made orders requiring the mother to make TD available for contact. Orders were backed with penal notices directed at the mother. The NSPCC and the social worker in Surrey gave support to the mother on the basis that the allegations were true. The case was not returned to the court for a fact finding hearing. The opposing systems continued to run in counter-measure. It is for that reason that, as soon as I came to deal with directions in the case, I ordered a fact finding hearing. The effect of this opposing approach has been that the father has been overlooked in the professional dealings of those concerned in Surrey. The mother has faced penal orders from the court (and threats of residence transfers) in Taunton whilst hearing her fears of abuse reinforced by some of those professionally involved in Surrey. The children's words have been interpreted without any proper professional enquiry. The children have been nurtured in the belief that the father has sexually abused them and that the paternal grandmother has also abused them and failed to protect them. I think that the mother, father and children have been left in an impossible position by reason of the inadequacies of this system. The case should have been returned to the court for a proper fact finding hearing on evidence months ago. I have read (and re-read) the relevant passages from the Cleveland report (pages 204 to 214) and the Orkney reports (pages 272, para 15.21 to 275, para 15.32) during the currency of my involvement in these proceedings. I am very well acquainted with the document called 'Achieving Best Evidence', which is an everyday working tool for those who practice within the family justice system. I am conscious of the danger of sounding 'au-dessus de ma gare', adopting the deliberately mistaken French of the playwright, Rattigan. However, I find it very difficult to understand how the history that has emerged reflects that acquired learning;
In Taunton, where the case was proceeding upon the basis that there was no truth in the allegations that the father had abused EB, assessments were ordered. These included assessments of the personality of both parties and included assessments by an independent social worker as to whether the father had the profile of an abuser. That social worker reported that he did not have such a profile and she filed reports in which she was highly critical of the mother. Evidence was filed on the basis that the case was moving forward into the 'welfare stage', the fact finding exercise having been concluded by the mother's withdrawal. It has been necessary to proceed with great caution in relation to that evidence. Since I have had to return to the fact finding stage, I have not placed any reliance upon those assessments, save insofar as they provide some background and uncontroversial information about the parties. I referred to the case of CB and JB (minors) (care proceedings: case conduct), Re [1998] 2 FCR 313, [1998] 2 FLR 211 in adopting this approach (i.e. the passage that reads: '(v) Evidence of propensity or a psychiatric or psychological assessment of one of the parties is unlikely to be of any assistance in resolving a purely factual issue. There will in any event be before the court evidence from the local authority and the parents relating to the history of the case and the backgrounds of each of the parents. A psychologist or psychiatrist instructed to undertake an assessment of a parent for the first stage of a split hearing is unlikely to have a complete knowledge of the facts. (vi) Furthermore, such a witness may, as here, express opinions as to propensity or as to responsibility for a child's injuries which are both prejudicial and wrong. The assessment of adult credibility as to the responsibility for a child's injuries (often the critical factual issue) remains the function of the judge. In my judgment, therefore, a psychiatric or psychological assessment of the parties should not be permitted at the first stage of a split trial unless the particular facts of the case demonstrate that such evidence is or is likely to be directly relevant to the factual issue to be tried'). Furthermore, this assessment was by a social worker and not by someone with psychiatric or psychological qualification;
There was no full case conference in relation to these children until May 2006. The experienced social worker (to whom I have already referred) became involved in the case in February 2006. She had the experience and basic common sense to recognise that there had to be a full child protection case conference. The first such multi-disciplinary case conference was therefore held on 2nd May 2006. It was attended by 20 people, lasted 2 ½ hours and was described by that social worker as being a very tense meeting. Sharp divisions were revealed between the professionals; those divisions remain. The children were registered under the category of 'emotional harm' on the basis of the parental conflict. I think that a case conference should have been held months (if not years) before this;
An expert, Mrs Robinson, gave evidence upon the reliability of what EB had said during the therapeutic interviews and of what TD had said at home. That expert gave evidence in absolute terms, suggesting that there was no rational alternative suggestion but that the children were making true allegations against the father. Her evidence was manifestly directed to the unbending exposition of that ultimate thesis. She was similarly absolute in her evidence about the reliability of the children's allegations against the paternal grandmother. She based this largely upon her perusal of video recordings of the play-therapy sessions of EB with the NSPCC and some DVD recordings taken by the mother of TD at home. Before she left court and in her presence, I expressed my real concerns about some of the content of what she had said in evidence. The day after she had given evidence she wrote to me personally expressing regret about the quality of her evidence and enclosed a report in which she qualified very heavily much of what she had said. I will deal with her evidence in detail later. I am, of course, very well acquainted with Section 3 of The Civil Evidence Act 1972 and the case of Re M and R (minors) (expert opinion: evidence) [1996] 2 FCR 617, [1996] 4 All ER 239. I referred the parties representatives to that authority during the course of the case, paying particular attention to the part of the judgment of Butler-Sloss LJ (as she then was) under the heading '3 Expert evidence'. I ensured that I re-read that judgment as a whole before dealing with submissions about Mrs Robinson's evidence. Personally I find veracity evidence of assistance in many cases in this field of exceptional difficulty. It concerns me very greatly that an expert who does give evidence upon the 'ultimate issue' bears a very profound responsibility for the content of that evidence (recollecting as one must R v Cannings [2004] EWCA Crim 1, [2004] 1 All ER 725, [2004] 1 FCR 193 and, not least, the public law protocol). I have never previously known an expert witness speak with such absolutism on such an important issue on one day (Friday 18th August) before so heavily qualifying that evidence on the next (Saturday 19th August);
There has never been any attempt at a formal forensic (and age appropriate) interview of either child. The nearest that anyone got to carrying out such an interview was the unrecorded interview carried out by a police officer of TD in November 2005. However, even that interview could not be regarded as fulfilling any of the normal requirements associated with an investigative interview. I fully appreciate that the children's ages make such investigative enquiry extremely difficult. I am well aware of what is said at page 51 of 'Achieving Best Evidence' in relation to interviewing very young children. However, since this case turns on what the children have said, some attempt should have been made for an experienced professional to investigate these allegations in a way that was forensic and properly recorded. It is now far too late to try to interview these children;
The allegations against the father are based entirely upon what the children have said. They have made allegations that have been repeated in front of others besides the mother. Cases that turn on such evidence are invariably complex, especially where, as here, there is no physical or direct evidence to support the allegations. What the children say is hearsay (admissible but needs to be scrutinised with great care – see e.g. Re N (child abuse: Evidence) [1996] 2FLR 214 CA and Butler-Sloss LJ in Re P (child: compellability as witness) [1991] FCR 337 at 344; sub nom R v B CC, ex p P [1991] 2 All ER 65 at 72, where she said: 'A court presented with hearsay evidence has to look at it anxiously and consider carefully the extent to which it can properly be relied upon'). It is necessary to examine with particular care:
What the children have said;
The circumstances in which they said it;
The circumstances in which any alleged abuse might have occurred (e.g. what happened during contact when abuse is said to have occurred? Who was present? etc).
In the mass of evidence that has been produced, that careful analysis has been rendered even more difficult than normal because the parties have spread the evidential net as widely as possible. I have heard evidence about the mother stretching back to her childhood. Her credibility, as the primary historian, is of obvious importance (and I will make findings in relation to the evidence concerning credibility in so far as I consider safe and available). However a close examination of the three factors that I have outlined above ('what the children said', etc) is paramount. An example of how this has been obscured occurred after all evidence had closed on day 13 of this hearing and I was then told that there needed to be further evidence about the father's first unsupervised contact visit with TD on 18th August 2005 – how could such an important issue have been overlooked?
Without descending into any detail of the mother's background it can be said with confidence that the mother is an unreliable witness. That is a general point. Of specific concern is that there are a number of absolutely rock solid examples of the mother making serious allegations against the father which are patently false. I give four such examples immediately:
She alleged that the father had his head shaved or shorn in order that he might invalidate an important drugs test (important because it was being alleged by the mother that he was a committed drug taker and drunkard). The drugs tester in fact tested 6 cms (i.e. six months growth) of hair and found no evidence of drugs;
She alleged that the father participated in (or arranged) a burglary of the mother's accommodation in December 2003. This manifestly false allegation was made to the police and resulted in a police enquiry. The mother's own witness accepted in evidence that there was no rational basis for this allegation being made against the father. Initially the mother also accepted this. After 7 days of evidence she then gave an account that sought to justify this allegation (she said that her lawnmower had been found at the home of the paternal grandmother). That explanation was plainly false also;
Initially in evidence she accepted having sent an email to TVAM about her experiences with the father. She told me, with formality through her counsel, that she had tried to retrieve the email over one weekend adjournment. She then denied any involvement in the email (a denial which I reject). She then told me in evidence that she had lied about trying to retrieve the email (sic) and had done no such thing. For these purposes the point that I wish to make is that when the email eventually materialised it was plain that it represented a manifestly untruthful account of her relationship with the father. An account that she had wished to broadcast;
She gave a false account of her relationship with the father when presenting her history to a psychiatrist in 2006, making serious and plainly unfounded allegations against him which were then fed into these proceedings by the resultant report (again I detail these later but mention now that she alleged without any factual foundation that 'the father was becoming increasingly intolerant and violent to EB'). This was a report that the mother herself had secured and was not based on any court instruction.
I wish to stress that I do not regard this mother's unreliability as in any way determinative of the case. However, it does make the case much more complex. This case now requires very careful analysis. Some of the mother's evidence is true and so I have to sift it with great care. Further it is an inevitable truism that, if these allegations are correct, the mother's hostility to the father and desire to paint him in the poorest of lights might be understandable. Further still, these children have repeated allegations before other people. I have certain opinion evidence that I must consider. I have to piece together a mass of evidence and only after collating it and analysing it as a whole have I reached a conclusion.
I hope that the above gives some insight into the complexities of the case.
This judgment is lengthy (and I apologise for its length). It does not represent a 'working out' of my opinion. I collected my thoughts and formed my opinions before starting to type it. I have read the complete bundle twice. I have been involved in this case for nearly six months. I have heard 14 days of evidence and submission. I have considered the law, which I set out below. Before writing this judgment I re-read the notes of evidence that I had taken. I then mapped out my opinion in draft before starting to type this judgment. It has taken me three days to type it.
I therefore see no reason to delay stating my conclusions which are:
I am satisfied so that I am sure that there is not a scintilla of truth in the allegations against the paternal grandmother. Of course, it was never for her to prove her innocence. However this is not a case where the burden and standard of proof have produced a result of 'allegation not proved'. I make a positive finding in favour of the paternal grandmother to a standard way beyond that required, that she is entirely innocent of the allegations ;
I am satisfied to a high degree of probability that there is no truth in the allegations against the father. Again it was never for him to prove his innocence. Again, this is not a case where the burden and standard of proof have produced a result of 'allegation not proved'. This is a positive finding in favour of the father to a standard way beyond that required that he is entirely innocent of the allegations. The difference in my choice of language in relation to this finding and the finding concerning the paternal grandmother is that it must be exceptional for a Judge to express himself with the certitude that I have adopted in relation to the paternal grandmother. My choice of language is my own and records my own state of mind. I have weighed my words with care having pondered them long and hard. However, no professional person dealing with this family should draw any distinction between the findings that I have made in relation to the father and the paternal grandmother. Unless and until this judgment is successfully appealed or varied, these two people should be treated on the basis that they are both entirely innocent of all allegations upon which findings have been sought in these proceedings;
I am sure that the mother genuinely believes that the allegations that she made against the father are true. Her fears have been confirmed by some professionals (albeit without proper analysis) and, at times she has been left in an impossible position by what I have called the opposing system (Taunton court proceeding on one basis, some professionals in Surrey proceeding on another). Further she read and heard Mrs Robinson's evidence which was inevitably influential on her thinking.
The summary of my factual analysis is this:
this mother was traumatised and sensitised to sexual abuse having experienced such abuse as a child and suffered that trauma with little support from her family. In her adult life she has been involved in a number of unhappy relationships and has known little stability. She has developed a tendency to be untruthful, particularly when under stress and has a clear history of making false and grave allegations against other people. The relationship between the father and the mother was tempestuous and highly stressful for them both. The mother made a number of false and serious allegations against the father (which do not relate to sexual abuse, some of which I have detailed above and some of which I do not record in this abbreviated judgment). After the father made an unwise remark during the period of cohabitation ('what do you think I am doing, sexually abusing your child?') her anxieties were awakened;
A year after separation (in March 2004) the mother pressed EB as to whether the father had sexually abused her and, in all probability, she did so in a very suggestive way. Upon the child confirming her fears, the mother reacted in a highly emotional manner leaving EB in no doubt at all that the father had abused her. The fact of the abuse was broadcast widely by the mother and reinforced to the mother and to the child by the mother's friends. That assumed abuse became an established fact of life for EB;
Having withdrawn from a fact finding hearing, the mother enlisted the assistance of the NSPCC who provided counselling to the mother and therapy to the child on the false basis that the allegations of abuse were correct. Given the therapeutic nature of the NSPCC work and the circumstances in which it occurred, there is very little forensic value in the NSPCC sessions with EB. I disagree with Mrs Robinson's oral evidence. By May 2005 the mother heard her anxieties confirmed by the NSPCC (they had in fact been confirmed ever since September 2004 when the mother enrolled on the NSPCC course for parents of abused children) and by a previous social worker;
Under pressure from what I have called the opposing system (Taunton v Surrey) the mother was obliged to permit the father contact with TD but did so in the belief that the father had abused EB and was a very significant sexual risk to TD. That anxiety was clearly demonstrated to TD and that assumption of abuse became an established fact of life for TD as well. After the 18th August 2005, when the mother believed a patently false suggestion about the father putting a knife across TD's penis in a public place, the mother's anxieties became even greater. Unsurprisingly, the staying contact was a disaster and, I have no doubt, the mother's anxieties lead to intense discussions with TD about whether the father had engaged in sexual abuse during the contact (the mother herself says that she checked TD after each contact visit to see whether he had been abused). Arising out of the discussions, the child gave a totally confused and manifestly unreliable account of events during staying contact, saying that he had been sexually abused by the father in the presence of the mother and EB;
The father, who has never before been properly heard on these issues is, in the main a reliable and truthful witness but he has the capacity to express his frustrations with the mother in a most unwise way. That has increased the mother's anxiety. Further, there is one issue of fact upon which I have found that he has not told the truth;
The grandmother is an impeccable witness whose veracity is beyond question. She is a woman of exemplary background which suggests the highest degree of probity and family values. There is no evidence at all that she was involved in any way in any sexual abuse of TD. The most that the mother suggests that TD has alleged is that the paternal grandmother pushed the father's fingers off TD's face on one occasion and that TD was hurt in a tunnel when the paternal grandmother was present. The allegations against her concerning EB were delayed by at least two years from the date when she last had relevant access to EB. Those allegations are inherently and profoundly improbable. It is inherently improbable that, having come across her son in an act of abusing a two year child, her son would have continued with that act in the knowledge that his mother was present. It is therefore inherently improbable that she had to pull her son off EB during an act of abuse by her son. Having spent a considerable amount of time analysing this point, I am left of the clear opinion that the allegation against the paternal grandmother is absurd. Nothing in the paternal grandmother's conduct is suggestive of her having witnessed or having been told that EB had been abused by the father. The environment in which the allegation was made adds to its lack of cogency. The allegation emanates first as hearsay evidence from the mother, is reported to the mother's friend at the mother's encouragement and is repeated in the therapeutic environment that I analyse later;
The falsity of the allegation against the grandmother is logically informative of the reliability of the allegations against the father.
I do not at this stage, wish to consider making a finding that this mother has deliberately and maliciously staged these allegations against the father and grandmother through the agency of the children. I accept Ms Gargan's submission that there needs to be an assessment of the mother and of the family as a whole and any findings about the mother's actions will have to be reviewed at that stage. My clear present opinion (and subject to anything produced by assessment) is that this mother's anxiety and past trauma have caused her to be unduly receptive to any possibility that her children may be sexually abused. Her hostility to the father by March 2004 made her even more receptive to (and keen to secure) adverse suggestions relating to him. As a result the children have lived in an environment where, without any proper basis, the assumption that they have been abused has been treated as a fact of life. The mother's anxieties and EB's beliefs that she has been abused have been confirmed to them both by some professionals who have worked with them without the basic facts ever being established and without the father and the paternal grandmother ever being properly involved. The mother is therefore not uniquely to blame for what has occurred.
Absent the issue of sexual abuse (and subject of course to the assessments that will now have to be carried out) everything that I have read and heard suggests that the mother is a mother whose physical care of the children is beyond reproach and who has a strong relationship with them. She loves them dearly and is their primary carer. The children obviously have strong attachments to each other. She fears the removal of the children from her if the court makes findings that are hostile to her. On the information that I currently have, I do not envisage such a removal could be in their interests.
The result of this is that this family as a whole has experienced grave injustice. First on the list of those who have suffered this must be the children. Second on that list in equal rank must be the father and grandmother. The mother, herself, has also suffered injustice. Superficially it may seem strange to place the mother so firmly on this list. But as this terrible tale is told below I hope that I make it plain why I put her there. EB has received therapy on a false basis and will now believe that she has been abused by the father and, as described, by the paternal grandmother. TD will now believe that he has been abused by the father. It will take a complete shift of mind-set for the mother to accept that the father has not perpetrated abuse; I am not sanguine about whether she will ever do so.
Of particular professional concern to me is that if I had simply followed the initial evidence of Mrs Robinson, I would have perpetrated a grave injustice myself. For that reason I have referred this case to the Family Division liaison Judge.
The principles of law that apply
The burden of proof is on the person making the allegation. Here, that is the mother.
The standard of proof is the civil standard of proof. Thus facts are established if it is more probable than not that they occurred. That civil standard has to be applied in accordance with the speech of Lord Nicholls in Re H and R at [1996] 1 All ER 972 at p986-987 where he said:
'The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation. Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-TD J expressed this neatly in Re Dellow's Will Trusts, Lloyds Bank Ltd v Institute of Cancer Research [1964] 1 All ER 771 at 773, [1964] 1 WLR 451 at 455: 'The more serious the allegation, the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.' This substantially accords with the approach adopted in authorities such as the well-known judgment of Morris LJ in Hornal v Neuberger Products Ltd [1956] 3 All ER 970 at 978, [1957] 1 QB 247 at 266. This approach also provides a means by which the balance of probability standard can accommodate one's instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters'.
A judge in difficult cases such as this has to have regard to the relevance of each piece of evidence to other evidence and to exercise an overview of the totality of the evidence in order to come to the conclusion whether the case put forward by the party making the allegation has been made out to the appropriate standard of proof. Evidence should not be compartmentalised. I have taken that from the judgment of Dame Elizabeth Butler Sloss DBE in Re T (children) [2004] 2 FLR 838.
I also regard it as important to record that matters of fact should only be determined insofar as they are necessary for the resolution of the substantive issues in the case. My primary function is to determine the reliability of the allegations of sexual abuse that have been made against the father and of the subsidiary allegations that are made against the paternal grandmother. I also have to determine the genuineness of the mother's beliefs that those allegations are true. Of course, in order to fulfil that function I have heard a wide spectrum of evidence. That wide spectrum of evidence has introduced a number of side-issues which have ranged over the whole history of the lives of the father and the mother. Family dynamics and personal histories are complex. Speculative, opportunistic and selective grasps at pockets of evidence relating to the distant past based upon partial information given in evidence are plainly unsatisfactory.
Further, although I have a very full and detailed chronology from each of the parties about the background of the case it would be prolix and unnecessary to deal with every aspect of the chronology in a judgment. I will contain my findings to those which are essential to my task.
There then followed an analysis of the facts. The judgment continued:
Mrs Robinson's evidence
I would wish to begin by recording the terms of the letter that I was sent on 19th August 2006. It read: 'I do hope that you will forgive me for writing to you directly but I am most concerned that I did not assist the court to the best of my ability yesterday. In fact I probably made an extremely complex situation even more difficult. Saying that I was taking some medication (prochlorperaxzine) for my current labyrinthitis condition sounds like a weak excuse, but my mental facilities were simply not at their best. I enclose the following statement in the hope that it clarifies certain matters which I failed to address properly when giving evidence'.
In the accompanying statement she identifies the following points (which I identify in italics and make remarks about in normal typescript where necessary):
'I should have been more explicit in stating that my appraisal of the children's responses was…limited and was based on the research and literature referenced in my original report'. Her oral evidence was in no way limited to expressions of opinion based on research and literature. She purported to give evidence based upon her then apparent opinions about the contents of the material she had seen and read;
'I should have emphasised the difference between features associated with unreliability based on research and literature, and those associated with reliability based on systematic analysis of an investigative interview. Without wishing to split hairs, I should have raised the question as to whether the lack of features associated with unreliability (using very limited source material) equates to reliability. I cannot safely suggest that it does'. I have examined that sentence for some time and I find it difficult. If there are no features that suggest unreliability the overall picture is one of reliability. I take this to mean that Mrs Robinson is saying that she is now more hesitant about the reliability of the information that she examined;
'I should have further emphasised that my conclusions were set against a background of incomplete information especially in that:
no expert psychological or psychiatric evaluation of either parent has taken place;
no investigative interviews of the children have taken place'.
I deal with this point later.
I regret that I referred to the hypothesis that the children had absorbed a false reality from their parents as 'gobbledegook'. This is an area entirely outside my expertise. I ask the court to consider whether or not to extend the …instruction of the consultant psychiatrist to include assessment of the mother for Munchhausen's by proxy / factitious illness syndrome, and/or the presence of delusional disorder. Her evidence on this point was at page 4 of the transcript. At page 22 she said: 'My long experience would say that most children do not absorb this sexual abuse stuff'. I think that is a very general point to make and I would not have accepted it in those general terms. I have re-read the relevant parts of the Cleveland report when considering this issue – certainly this issue was not dismissed as 'gobbledegook' in that report – see paragraph 12.9 and the evidence to the enquiry of Dr Underwager;
'I should have emphasised the importance of the lack of investigative interviews in this case'. Again, I return to this later
'Lastly, although I may be described as an expert on children's veracity, this is in an academic sense. I should have made this clear when giving evidence. I have always been extremely uncomfortable with the term 'veracity expert' and I do not use it to describe myself. I am very clear that reaching conclusions as to the child's veracity or otherwise is not my role, as made explicit in paragraph 1.2 of my original report. In assisting the court's deliberations on children's testimony, my usual role is two-fold, i.e. in analysing the conduct of the interviewer under ABE guidelines to assess any influence on the child, and secondly, in assessing the child's responses, to present the court with any features associated with veracity and any associated with untruthfulness and or coaching. I should have been more explicit in explaining to the court that the lack of forensic interviews in this matter left me in some difficulty in terms of my usual role'. With respect, it is she who referred to herself as 'an expert on children's veracity' – see page 39 of the transcript.
This letter posed a number of immediate difficulties:
She did not qualify her evidence in anyway when giving it or suggest that she was not thinking matters through;
It left open the question of how the qualifications that she expressed would affect her overall opinion It is not enough to simply return to her report because she has qualified that by her letter;
If she herself regards her evidence as unsatisfactory, how can I regard it as cogent?
I saw no point in recalling Mrs Robinson to give further evidence and was not asked to do so. I now have 44 pages of transcript and 67 pages of reports from her. I cannot go through her evidence page by page given the amount of other material that I have read. Further, there are obviously a number of points that Mrs Robinson makes that are extremely valid.
Overall I find as follows in relation to Mrs Robinson's evidence:
She did not qualify her evidence sufficiently when presenting it to the court, for all the reasons that she herself gave in her letter dated 19th August 2006. In particular she did not attach sufficient weight to the fact that she was reviewing therapeutic interviews of EB. At page 35 of the transcript I made this point to her and her reply was: 'I would suggest that the way through that is to apply forensic tests to that therapeutic style'. As I understand her letter, Mrs Robinson accepts that her reply was inadequate. In her report at C275 she appeared to take a different line - ('statement analysis of her responses is not appropriate');
Until questioned at length in court, she did not qualify her opinion on the basis that the courts factual findings would have any importance. She spoke with absolutism which was based on theoretical criteria and which she herself now wishes to qualify. At page 37 of the transcript she says that there is no other explanation save that what EB has said in the NSPCC sessions should be accepted as correct. I reject that. I accept that Mrs Robinson's replies arose as a result of questioning from me. However, my questioning was directed at clarifying what she was saying. I consider that she went well beyond the boundaries suggested in Re N (child abuse: evidence) ibid at p222;
In oral evidence (and under pressure of questioning) she did accept that if core aspects of what the children said were shown to be wrong, that would be important in assessing the reliability of their allegations. I have found that such core aspects are incorrect. In that respect my findings are therefore consistent with her evidence. I explain this more below;
She did accept that there may be significance ('on the surface') in a letter dated 7th March 2006 being followed so closely in time by the contents of the NSPCC session in which EB makes allegations that are contained in the letter, 'depending on the circumstances'. I agree and I have attached significance to this;
There was confused evidence about the very simple question of whether young children can adopt (or absorb) their parents hostile beliefs about another person. Mrs Robinson did not acknowledge that they could and suggested that this was a complex issue of psychology or psychiatry. I disagree. I accept the submissions made by each of the parties, save for the mother (but including the Guardian ad litem) that this is not a complex issue requiring expert evidence. It is an issue of basic parenting. I accept the Guardian ad litem's submission that it is ridiculous to suggest otherwise. If a young child hears a primary carer explaining for nine months that another person is bad or dangerous it will come as no surprise that a young child adopts that view. I decided that I did not require further expert opinion on that issue, particularly since Mrs Robison withdrew her 'gobbledegook' remark;
Her report states: 'I have scrutinised [the NSPCC therapist's] conversation with EB, in order to ascertain whether she made any suggestible comments, or whether EB was led into making her allegations in any way. I respectfully conclude that she did not'. I have thought very carefully about that part of her report. In the light of what I have set out above concerning the very basis upon which EB's therapy took place (i.e. to tell the therapist about how the father had hurt her), I cannot accept that. I asked Mrs Robinson about this in her oral evidence (page 8 of the transcript) and she said that she had scrutinised the child's responses so carefully because EB had been told that the purpose of the sessions was to tell the therapist about the bad things that the father had done to her. I do not think that her reply fits happily with her report. Why scrutinise what EB said 'so carefully' for this reason, if she had concluded that there was no evidential basis for doing so?
The fact that these were therapeutic sessions of EB rather than 'ABE interviews' meant that this case was outwith her usual area of expertise. She did not mention this at all in her oral evidence. Although she did mention this at C275, this did not cause her to qualify her opinion in oral evidence;
This case is essentially fact dependant. That is, it turns on its own facts. I approach with caution statistical material (see e.g. C277 and Cf R v Angela Cannings);
I accept that 'knowledge of such extreme sexual behaviour' as that suggested by EB in the seventh session would normally be 'outside of the knowledge of a five year old child'. However, that depends upon what the child has heard in her home. Further, this approach to what a child has said does not remove the requirement to put what the child has said within the context of everything else that is known in the case – see e.g. The Orkney report, repeating the Cleveland report, at para 12.22. I have placed it in that context and I regard it to be wholly unreliable. If it were treated as reliable then the grandmother would be implicated in the precise terms of the child's allegations. Interpretation (such as that suggested by Ms Gargan – knife = penis) is speculative;
In her report she made reference to the fact that TD had suggested that the father sexually abused him 'on his mummy's bed with his mummy in his mummy's bed'. However she did not mention this feature at all (and the factual variations of it that I have recorded above) when assessing in her report the reliability of what TD had said. Further, she placed it in the context of her suggestion that there was nothing unreliable in what EB had said. Of course the evidence has to be viewed as a whole and it is possible to be circular about which allegation or falsehood is probative of another. For the reasons that I have given I think that it is absolutely certain that I can approach TD's allegations upon the basis that EB's allegations against the grandmother are untrue, even without considering the position of the father. Mrs Robinson therefore did not question the extent to which this might affect the reliability of what TD said (i.e. one child has made serious and false allegations of abuse – how does that inform one about the likelihood of another child from the same household making another false allegation? Why did EB make this false allegation?)
I left court on 18th August 2006 (having heard Mrs Robinson's oral evidence) asking myself a number of questions, not least:
Can it seriously be suggested that it is irrelevant that this child lived in that environment for nine months before attending therapeutic sessions which she knew were taking place on the basis of the allegations being true?
Is it right to ignore everything that went before the therapeutic interviews and analyse only what happened during those sessions?
Can one safely ignore all that is known, for instance, about this grandmother and this father?
During a two week break from this case I was able to consider everything that I had read and heard from Mrs Robinson and conclude that I was not satisfied with it. I returned from that two week break to find the additional statement of 19th August 2006 which in many ways confirmed my own thinking. The answer to each of the above questions is: 'no'.
Fortunately, the position has become much clearer as the evidence has progressed. I have recorded my factual findings on the history of this case. If I had to slot my findings into the opinion evidence that emanated from Mrs Robinson I would do so on the basis that I find that very significant features of the allegations that both children made are plainly and easily demonstrated to be untrue. This is not just judicial opportunism; it is an obvious and important feature of this case based upon the findings that I have made. I have not limited my assessment of her evidence to this point and am not prepared to deal with matters on the basis that my findings might be slotted into her evidence out of convenience.
In relation to EB the allegation against the grandmother (part of the 'core', according to the evidence that Mrs Robinson suggested), is plainly untrue. In relation to TD, he cannot have been abused in his mother's house or bed. His mother and EB could not have been present. The allegation concerning the use of a knife during a contact visit that took place in a public place is absurd. There is an inherent improbability in the allegation involving a knife and bleeding going unobserved (both as to its physical and emotional effect) by the child's primary carer.
I have already set out the passage from Re T where Dame Elizabeth Butler Sloss reminded Judges that they must have regard to the whole of the evidence before reaching conclusions. A significant part of the evidence in this case related to the therapeutic sessions that were carried out by the NSPCC. Much of Mrs Robinson's evidence was directed to this. That evidence has also to be sifted with care. I have referred to it insofar as I think that I need to when dealing with the history of the case.
However, I do wish to make it plain that I have not proceeded upon the basis that therapeutic sessions can never provide a source of forensic evidence. They may do. They may provide the best or indeed the only evidence on the issue. I regard the issue to be one of weight, on the individual facts of the specific case. I note what is said on this issue at paragraphs 12.36 to 12.39 of the Cleveland Report. In my opinion the recordings of the therapy sessions require extremely careful handling in this case since:
They are solely therapeutic. They were never intended to bear any forensic function. The guidance about interviewing young children (in particular, Achieving Best Evidence) is there for a purpose;
The sessions in this case were based upon the express premise that abuse of EB by the father had taken place. There is no attempt at 'open ended questions to support and encourage the child in free recall' (Cleveland, para 12.34 and Re N (Child abuse: evidence) [1996] 2 FLR 214. The assumption is made and communicated to EB that 'the father had done bad things to her' and that is what she was to tell the NSPCC therapist about;
The sessions in this case took place nine months after the child first began to speak of being hurt by the father. Thus the presentation seen in these sessions was delayed and came after a lengthy period in which the assumption had been made and established with the child that the alleged abuse had taken place. The allegations made during these sessions could not be regarded as spontaneous;
The sessions were heavily influenced by the mother, in the particulars that I have given already;
During the sessions themselves the child had her allegations of abuse confirmed and reinforced (as is only to be expected in therapeutic sessions with a young child who is taken to have been absued).
Conclusions
I have made it quite plain why I reject the allegations against both the paternal grandmother and the father. I have already summarised the basis of my opinions concerning the paternal grandmother.
The main features concerning the father are these:
The mother's account of how it came about that EB said that '[the father] hurt my bum' is wholly unreliable. I have no doubt that EB said this in the context of being pressed by the mother for information in a way that was suggestive and adverse to the father;
The mother has invented a number of allegations against the father in the past. I find that the mother's hostility and fabrication of allegations against him make her account of what the child has said at any stage utterly unreliable unless it is corroborated. The fact that allegations were made to the mother first (before being repeated to others) severely limits the reliability of what is said to third parties. None of these third parties ever doubted the mother's contention that EB had 'disclosed' abuse;
Significant aspects of the allegations against him are plainly wrong. The allegation that the paternal grandmother (i.e. his mother) was involved in the abuse of EB in the way described (part of the 'core allegations', according to Mrs Robinson) is absurd for all the reasons I have given. TD's description of where the alleged abuse took place and the presence of the mother and EB is also plainly wrong;
The therapeutic interviews bear little if any forensic value in the circumstances in which they took place;
The allegation concerning the knife is absurd and untrue. Whether it was said at all I cannot say. The fact that this allegation is given as a hearsay account by the mother makes it plainly unreliable;
The lead up to TD's staying contact was surrounded with tension with the mother checking TD for sexual abuse after each contact visit and talking to him about sexual abuse. By the time that the staying contact took place it was accepted within the mother's household that the father had already sexually abused TD and TD was well aware that this was the mother's attitude.
Insofar as is necessary and for the reasons set out above I depart from the views expressed by Mrs Robison prior to her letter dated 19th August 2006.
Consequently I find that there is no cogent or reliable evidence of abuse against the father. His denial therefore attracts a cogency of its own and I accept it. He is not guilty of any of these allegations. Nor is his mother.
Stephen Wildblood QC
14th September 2006.